Hearings and Business Meetings

Jul192005

SD-366Energy Committee Hearing Room02:30 PM

James Plasman

Statement of James H. PlasmanChairman, Nuclear Claims TribunalRepublic of the Marshall IslandsBefore the Senate Committee on Energy and Natural ResourcesJuly 19, 2005

The number of cancers and other health effects resulting from the nuclear testing program in the Marshall Islands greatly exceeds what was known at the time the Section 177 Agreement became effective in 1986. While there were grounds for an argument of changed circumstances under the terms of the Section 177 Agreement even before the recent study by the National Cancer Institute (“Estimation of the Baseline Number of Cancers Among Marshallese and the Number of Cancers Attributable to Exposure to Fallout from Nuclear Weapons Testing Conducted in the Marshall Islands,” prepared for Senate Committee on Energy and Natural Resources, September 2004,) the results of the NCI study firmly establish the existence of changed circumstances.

The baseline of what was known about radiation health effects may be established by a paper, presented in October 1987 to the Japanese Nuclear Medicine Society by Jacob Robbins (Clinical Endocrinology Branch, National Institutes of Health, Bethesda, Maryland) and William H. Adams (Medical Department, Brookhaven National Laboratory, Upton, New York), two well established scientists with significant experience in the Marshall Islands (Brookhaven National Laboratory was the institution charged with observing and reporting on the health of the affected Marshallese people.) This paper, “Radiation Effects in the Marshall Islands,” was later published in Radiation and the Thyroid: Proceedings of the 27th Annual Meeting of the Japanese Nuclear Medicine Society, Nagasaki, Japan, October 1 -- 3, 1987, Shigenobu Nagataki, editor, Excerpta Medica, Amsterdam-Princeton-Hong Kong-Tokyo-Sydney, 1989.

In terms of early radiation effects, they reported on Rongelap “about two-thirds of the people developed anorexia and nausea and one-tenth had vomiting and diarrhea . . . skin burns appeared after 12 - 14 days in about 90% of the Rongelap inhabitants.”

In regards to late effects, they noted: “It has become evident that thyroid abnormalities - which include benign and malignant thyroid tumors and thyroid failure - are the major late effects of the radiation received by the exposed Marshallese.” They found the following thyroid effects, through 1986: 2 cases of profound growth failure in two boys due to radiation related thyroid atrophy; 12 cases of hypothyroidism not related to thyroid surgery; 51 observed thyroid nodules (16 expected, 35 excess;) 9 observed thyroid cancers (2 expected, 7 excess.)

They observed three fatal cancers (leukemia, stomach cancer, and cranial meningioma) and six “nonlethal” tumors (a neurofibroma, a breast cancer, a colon cancer, and three pituitary tumors) as other “late radiation effects -- or possible radiation effects.”

It should also be acknowledged that the U.S. Department of Energy in 1982 (“The Meaning of Radiation for Those Atolls in the Northern Part of the Marshall Islands That Were Surveyed in 1978”) estimated an additional two cancers would result from exposures in the thirty years following the Radiological Survey of the Northern Marshall Islands, conducted in 1978.

These findings establish what was known about health effects of the nuclear testing program at the time of the Section 177 Agreement.

The NCI study establishes a basis for what we know now about these test related health effects, and reveals the following comparisons of radiation induced cancers:

If the same ratio of radiation excess thyroid nodules (35) to excess thyroid cancers (7) that appears in the Adams/Robbins paper is applied to the NCI estimate of 262 excess thyroid cancers, the number of radiation caused thyroid nodules would be 5 x 262 = 1310. These thyroid disorders, attributable to the nuclear testing program, are health effects suffered by the Marshallese people in addition to the cancers estimated by the NCI.

The stark contrast of what was known at the time of the Section 177 Agreement about the health effects resulting from the testing program and what is known now in light of the NCI study must be regarded as a changed circumstance.

While the Petition as originally filed included a request of $26.9 million for the unpaid balance of personal injury awards, that amount now stands at $15.7 million. However, with more than half the cancers estimated by the NCI yet to develop, that amount reflects only the current balance due and does not reflect future awards.

The Tribunal was justified in adopting the presumption of causation approach.

In adopting a presumption of causation approach, the Tribunal primarily relied upon the precedent set by the Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-321, and by the Radiation Exposure Compensation Act (RECA) of 1990, Public Law 101 426, particularly with its application to the Downwinders - those residents in the areas around the Nevada testing grounds who were affected by fallout from the tests. A primary source of scientific support for these programs was the work of the National Academy of Sciences' Committee on the Biological Effects of Ionizing Radiation. Passage of the Veterans Compensation Act in 1988 relied primarily upon the Committee’s third report, so-called BEIR III, while RECA had the benefit of BEIR V. The BEIR V Committee made heavy reference to the work of the Radiation Effects Research Foundation (RERF), a bilateral undertaking of Japanese and American scientists to study the human health effects of the atomic bombings of Hiroshima and Nagasaki. The Committee also used data from other well studied human populations exposed to radiation and referred to experimental studies on laboratory animals. Of particular importance, supporting the use of a presumption of causation, was the determination that there was no threshold dose below which stochastic effects such as the development of cancer would not occur. To the extent that these U.S. programs relied upon this body of work as the scientific basis for compensation, by extension, the Tribunal made similar reliance.

In adopting the Veterans Compensation Act and RECA, Congress was clearly motivated by the perception that the government had wronged these victims of radiation exposure and that unreasonable standards of proof should not stand in the way of compensating deserving individuals.

Both of these compensatory programs rely upon a presumption of causation to determine eligibility for compensation. In both situations there was a desire on the part of Congress to enact a system that was fair and reasonable, in light of the difficulties in proof of causation, but also that was efficient and cost effective. The use of the presumption of causation addressed this desire. In speaking against an amendment to remove the immunity from law suit of governmental contractors involved in atomic weapons development (floor debate on NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1991, Congressional Record August 03, 1990, p. S12117,) Senator Grassley of Iowa articulated these concerns:

The litigation solution works as a cruel hoax on the intended beneficiaries; it holds out the prospect for recovery, but frustrates the victims by delay and expense. The Justice Department testified that radiation cases take much longer to prepare and try than do most other types of litigation; a typical case would take more than 5 years to resolve. Worse, simply repealing the Warner amendment will do nothing to solve the enormous proof problems that plaintiffs will face, attempting to link their exposure to current disease.

A straight repeal of the Warner amendment may give some a warm feeling, and it will surely bring a smile to a lawyer's face, but it will mean scant little for those who need help the most.

Mr. President, these people don't need lawyers, they need money to pay their medical bills, to care for their sick or terminally ill.

If the Government is responsible, and the evidence strongly suggests that it is, then let's create a compensation system outside of the courts to provide relief--faster, without litigation expenses, without having to prove fault, and without lengthy appeals.

In recent years, we have shown a preference for compensation over litigation, with enactment of the child vaccine compensation legislation, the Radiation -Exposed Veterans Compensation Act of 1988, and the Veterans Dioxin and Radiation Exposure Act (Public Law 98-542) among others.

The motivation for a simple, reasonable administrative system was strengthened by the perception that the government had not only harmed these victims of radiation exposure, but had done so in a significantly wrongful manner. In floor comments on the Radiation-Exposed Veterans Compensation Act 1988 (see Congressional Record Senate for April 25, 1988, pgs. 4637 4641), Senator Cranston of California said, "Science has clearly proven that ionizing radiation can produce serious adverse human health effects. While we do not have all the answers as to how much radiation exposure is necessary before the various adverse effects appear, there is a long list of cancers for which radiation has been established as a risk factor." He went on to say that "these veterans were not informed of the risks associated with their participation in the nuclear weapons testing program, nor was their health status systematically monitored thereafter. Accordingly, I strongly believe that we have the responsibility to ensure that these veterans finally are treated in an evenhanded and compassionate way with respect to their claims for VA benefits."

The Marshallese people were never informed of the risks associated with their participation in the nuclear tests in the Pacific. Their health status was never systematically monitored until after the tragic events following the BRAVO test in 1954, and then, only a small fraction of the exposed population was covered. These similarities between the U.S. affected populations and the Marshallese affected population provide compelling justification for following U.S. precedent in adopting a presumption of causation.

The Tribunal provided an in-depth discussion of the reasons for believing the extent of fallout in the Marshall Islands went beyond the four atolls identified in the Section 177 Agreement, on March 18, 2005 in Majuro, to two senior staff members of this committee and to the U.S. Ambassador to the Republic of the Marshall Islands. Attached is a written statement which addresses the points made at that oral presentation.

In summary of that discussion, the Tribunal felt there was ample information available, even before the NCI study, to support the extension of the presumption of causation throughout the Marshall Islands. First, is an article which appeared in the Journal of the American Medical Society (Hamilton, T. E.; van Belle, G.; LoGerfo, J. P.; “Thyroid Neoplasia in Marshall Islanders Exposed to Nuclear Fallout,” Journal of the American Medical Association, 258:629 636; 1987), which investigated the appearance of thyroid nodules in 12 atolls previously thought to be unexposed to fallout from the testing program. The investigators not only found a higher than expected incidence of thyroid nodules in these atolls, but also found the incidence rate showed an inverse linear relationship with distance from Bikini, strongly suggesting that the nodules were caused by radiation from the tests.

Secondly, the findings of the Marshall Islands Nationwide Radiological Study issued in 1994, reported Cesium 137 levels two to 11 times greater than global fallout at 15 atolls that were not included in the Section 177 Agreement.

The release in 1994 of a previously classified Atomic Energy Commission report from 1955 (Breslin, A. J.; Cassidy, M. E.; "Radioactive Debris from Operation Castle, Islands of the Mid Pacific," New York: U.S. Atomic Energy Commission, New York Operations Office, Health and Safety Laboratory; NYO 4623; 1955) provided significant support for the nationwide application of the presumption of causation by the Tribunal. That report was based on aerial monitoring conducted during the Castle series throughout the Marshall Islands and indicated external radiation exposures to every atoll of the Marshall Islands, in contradiction to the DOE position that only the northern four atolls received fallout from the tests. Internal exposures would have increased the level of exposure even higher than those reported by Breslin and Cassidy.

During the testing program, a monitoring station was maintained on Kwajalein Atoll. Although the gummed film methodology utilized there provided only a crude measurement of fallout, “The clear indication from the monitoring station was that deposition of fresh fallout occurred at Kwajalein Atoll within a single day following every one of the detonations over 1 megaton explosive yield” (Simon, S. L.; "STATEMENT OF STEVEN L. SIMON, PhD, Director, Nationwide Radiological Study, Republic of the Marshall Islands, Submitted to the United States House of Representatives, Committee on Natural Resources, Subcommittee on Oversight and Investigations in respect to United States Weapons Testing in the Marshall Islands," February 24, 1994.) These findings were reiterated in a 1997 report (Takahashi, T., et al.; "An Investigation into the Prevalence of Thyroid Disease on Kwajalein Atoll, Marshall Islands," Health Phys. 73:199 213; 1997) that stated the data showed that “all eighteen of the large Marshall Islands tests (those >1 MT explosive yield) were detected at Kwajalein at about 100 X the background radiation level (Simon and Graham 1996). Presumably, other mid latitude atolls in the Marshall Islands received similar amounts of early fallout as did Kwajalein."

These studies, and those cited in the attachment, provide an ample basis for the extension of the presumption of causation throughout the Marshall Islands.

The Tribunal has not “overcompensated.”

While the Tribunal has made awards to 1,941 individuals, it would be a misstatement to say that all these awards are for past cancers, because in fact more than 1,000 are for non-malignant thyroid conditions. As noted by Robbins and Adams in their 1987 paper, “It has become evident that thyroid abnormalities -- which include benign and malignant thyroid tumors and thyroid failure -- are the major late effects of the radiation received by the exposed Marshallese.” Although the full extent of those effects was not recognized at the time of the paper’s presentation, the sensitivity of the thyroid gland to radiation, beyond the development of cancer, has long been recognized.

The NCI study addresses only cancers and states, “Estimation of diseases other than cancer is more problematic . . . and would require access to expertise and data not readily available at the National Cancer Institute.”

As noted above, based on the Robbins and Adams findings on the relationship between thyroid nodules and thyroid cancer, and based on NCI’s estimate of 262 excess radiation related thyroid cancers, 1,310 radiation related thyroid nodules could be expected to occur in the Marshall Islands. Another 144 of the Tribunal awards are for radiation sickness and beta burns, both of which are directly related to radiation exposure, but are not cancerous conditions.

It should be noted that these non-malignant conditions are awarded compensation at levels significantly less than award levels for cancers. The most lethal and serious cancers are awarded up to $125,000 by the Tribunal (with downward adjustments based upon the age at which the condition manifests,) while a benign thyroid nodule not requiring surgery is awarded $12,500.

It must be understood that while the Tribunal has made more awards for cancer than the NCI estimate of radiation excess cancers, there are no clinically distinguishing features of a radiation related cancer to differentiate such cancers from non-radiation caused cancers.

This central fact of radiation related cancers lies at the heart of the presumption of causation utilized by the Tribunal and by Department of Justice for Downwinders in the United States under the Radiation Exposure Compensation Act and by the Veterans Administration for its statutory program for radiation exposed veterans. In order to meet the goals of the programs to compensate the victims of radiation exposure, it is deemed better to compensate broadly than to neglect compensation for those who are unable to prove with scientific certainty that their conditions were in fact caused by their radiation exposures. Built into such programs is the limitation of awards to set amounts which recognize the over-inclusive nature of the compensatory scheme. Surely if an individual awardee, whether a Downwinder, or a Marshall Islander, were able to prove to the satisfaction of a court the causal connection of the awardee=s condition to radiation exposure, the measure of damages would be far higher than the awards provided either by RECA or by the Tribunal.

This aspect of these programs was clearly recognized in comments on the floor of the House during discussion of the Radiation Exposure Compensation Act on June 5, 1990, as Representative James of Florida remarked (p. H3144, Congressional Record):

Mr. Speaker, I would like to point out in this bill; I do not think it has been said yet, or, if it has, it has not been emphasized as much as it might, but the limitations in this bill are only $50,000 for the downwinders. That is hardly tantamount to a large tort claim award, which could be in the millions.

It also has a savings aspect to it to the Government. It saves the attorneys fees, the expenses and the costs, a portion of which we are awarding would be consumed anyway. So, there is actually a substantial savings, probably to the Government, maybe not to the tune of the total amount of the judgments.

Similar comments can be made about the miners' $100,000. That is insignificant compared to a judgment that might be awarded if clear liability were found.

So, this is not like giving the full amount that a jury might give. It is only a fractional part to ease some of the pain economically to these miners.

If the award levels were based on the value of a statistical life, as utilized by regulatory agencies for cost-benefit analysis, the award levels would likewise be much higher. For instance, it has been reported (“Valuation of Human Health and Welfare Effects of Criteria Pollutants,” Appendix H, The Benefits and Costs of the Clean Air Act, 1990 to 2010, EPA, 1997) that while values differ from program to program, the mean value of a statistical life for regulatory purposes is $4.8 million. Even acknowledging that not all cancers in the NCI study are fatal, the level of compensation determined under such a methodology would far exceed what the Marshall Islands received under the Section 177 Agreement for all damages, not simply personal injuries.

It has been argued that a probability of causation or “assigned share” approach to compensation would provide a more precise means of targeting compensation to those actually affected by the testing program. One of the dangers in such approach is that by its nature, it looks only at the probabilities in a case and does not provide an answer to causation in fact. As a result, a claimant whose cancer was caused in fact by exposure to radiation could fail to qualify for compensation because the probabilities were against him or her. A further difficulty is the cost of implementing such a system. One expert estimates the cost of each reconstruction, based on EEOICPA experience could run as high as $30,000 to $40,000.

More importantly, there is simply insufficient information to recreate individual doses for people in the Marshall Islands for the purposes of a probability of causation analysis. As noted in the NCI study: “Following the nuclear tests that took place some 50 years ago in the Marshall Islands; measurements were sparse and generally uncertain. The little data now available to reconstruct doses at many different locations present difficult challenges for dosimetrists.”

In the compensation program established for U.S. Department of Energy employees exposed to radiation (EEOICPA), a probability of causation approach is utilized. Energy employees worked in a closely monitored environment where many wore dosimetry badges which provide a basis for precise dose reconstructions. Even in these controlled situations, EEOICPA provides for a presumption of causation approach when there is insufficient information to adequately reconstruct doses and where there is a reasonable likelihood of exposure to harm. The level of data for Energy employees far exceeds that available in the Marshall Islands. The NCI report shows excess cancers throughout the Marshall Islands, even in the southern-most atolls characterized by NCI as “very low exposure.” This excess presents a reasonable likelihood of harm to the entire Marshall Islands. Under these circumstances and the precedent set by EEOICPA, the extension of the presumption of causation throughout the Marshall Islands is reasonable.

What is needed.

While the Petition as originally filed included a request of $26.9 million for the unpaid balance of personal injury awards, that amount now stands at $15.7 million. However, with more than half the cancers estimated by the NCI yet to develop, that amount reflects only the current balance due and does not reflect future awards. At the end of 2003, the Tribunal had awarded $83 million. The NCI reports: “About 56% of the total radiation-related cases have yet to develop or to be diagnosed, compared to about 50% of the baseline cancers. This temporal distribution reflects the generally young age structure of the exposed population and the greater sensitivity at younger ages to radiation carcinogenesis.” (p. 16) Assuming the NCI estimate of past and future cancers reflects the same ratio of overall health conditions compensated by the Tribunal past and future, and assuming the Tribunal compensation scheme is fair and reasonable, then the $83 million awarded at the end of 2003 represents 44 percent of the level of fair and reasonable compensation for personal injuries. Assuming 56% of conditions will need to be compensated after 2003, then another $105.6 million will be necessary for personal injury compensation (56/44 x 83 = 105.6.)

The significant number of future cancers and other medical conditions will also require assistance for surveillance and treatment of these conditions. Finally, appropriate treatment of Tribunal property awards is necessary, through referral to the federal courts.